Current sentencing and parolepolicies can be characterized by what John Pratt terms penal populism. Thisapproach to criminal justice includes widespread increase in police surveillanceand arrests, elimination of rehabilitation as a correctional goal, and anunprecedented expansion of the prison population. Although crime rates havebeen declining appreciably for some time (a decline that preceded the explosionin prison populations), it has become politically expedient to ignore policysuggestions based on statistical analysis and focus rather on the uninformedbeliefs of the populace. Because the prison system is backed by a bureaucracyof its own, it continues to grow according to an internal rationality thatfavors constant expansion according to a decidedly retributive ethos.

Because so much of prison lifeoccurs far from the public’s view, changes in policy and implications oflongheld truisms are rarely noticed by those who are not directly affected bythe penal system. Just as Victor Hugo’s fictional Jean Valjean could be largelyforgotten in the bowels of prison, women and men sentenced to correctional facilitieslargely fall from consciousness unless or until benign neglect is disturbed byother factors.

Today, that benign neglect inWisconsin has been disturbed by the financial constraints of maintaining the currentprison population. Between 2000 and 2007,Wisconsin’s prison populationincreased by 14 percent. The State Corrections budget increased by 71 percentfrom 1999 to 2009.9 Wisconsin’s health care costs for adult prisoners leaptfrom $28.5 million in 1998 to $87.6 million in 2005. The Wisconsin Departmentof Corrections estimates that it will cost $2.5 billion between 2009 and 2019 toreduce overcrowding and accommodate the expansion of the prison system. As aresult of looming costs, Wisconsin, like other states, has begun to reconsiderimplications of previously popular law-and-order policies.

One product of Wisconsin’sreconsideration is a recent change in compassionate release standards forinmates in state correctional facilities. This legislation both expands thecategory of those eligible for sentence modification and streamlines theprocedure. Although the law has much to recommend it, issues unaddressed mayprove costly—notably the unintended consequences of placing financial burdenson the families or communities to which these prisoners are released in a bleakeconomic climate.

The idea of compassionate releaseof elderly and ill inmates is not new. In 1994, Professor Marjorie Russell publisheda consideration of the compassionate release and medical parole programs of thefifty states and the District of Columbia. Only three jurisdictions, theDistrict of Columbia, Kansas, and Maine, had no programs for the parole orrelease of terminally ill prisoners. Russell noted that

[t]wenty-two states reported thatthey have no compassionate release program, but each has at least one method bywhich a terminally ill prisoner can seek release. These methods included: commutationof sentence through the administrative procedures of the DOC with no specificprovision relating to the terminally ill; general claim for executive clemency;and normal parole application procedures, where the prisoner’s medicalcondition is only one factor to be considered in the ordinary parole decision.

Thus, almost twenty years ago,states recognized a need for this safety valve even without providing a specificstatutory grounding for it. Professor Russell maintained that compassionaterelease statutes address the concerns of both inmates and the states far betterthan do more generalized administrative procedures or clemency petitions. Afterlaying out the shifts in eligibility standards and procedure betweenWisconsin’s old and new compassionate release laws, I will turn to broaderconcerns that fall under the public-interest calculus called for in thestatutes. In addition to usual criminological considerations, I suggest thatthe word compassionate will need to do heavy lifting if this law is to make adifference in the lives of inmates.

I.Wisconsin’sOld Compassionate Release Law

By way of background, Wisconsin’scurrent sentencing structure is relatively new; it was overhauled between 1998and 2003 under the provisions of the state’s Truth in Sentencing legislation.Under that law, parole was abolished; felons sentenced to prison are now givena bifurcated (two-part) sentence in which the sentencing judge specifies anamount of time a convicted felon will serve in prison and an amount of time theperson will serve in the community on extended supervision. Under the originalprovisions of Truth in Sentencing, most inmates, with approval of the programreview committee at their respective institutions, could petition thesentencing court for release to extended supervision in certain extenuatingcircumstances. However, inmates serving life sentences were not eligible topetition.

Eligible inmates included both theelderly and the gravely ill. With regard to the elderly, the program review committeeat the housing institution could consider petitions filed by prisoners either60 or 65 years old who had served substantial portions of their sentences. Inaddition to these petitions, those who had a “terminal condition” could filefor modification. The statute defined “terminal condition” as

an incurable condition afflicting aperson, caused by injury, disease, or illness, as a result of which the personhas a medical prognosis that his or her life expectancy is 6 months or less,even with available life-sustaining treatment provided in accordance with theprevailing standard of medical care.

Inmates who fit within either categorycould then petition the program review committee of their correctional institution,requesting modification of the bifurcated sentence. Any request for modification based on aterminal condition required affidavits from two physicians. The institution’sprogram review committee then reviewed each petition filed and decided if the“public interest” (a phrase undefined in the statute) would be served by modifyingthe inmate’s sentence. Only if the program review committee found such interestcould the inmate’s petition be referred to the sentencing court. The statute providedno right to appeal the program review committee’s denial of a petition formodification.

At the sentencing court hearing,the petitioner, the district attorney, and any victim of the crime for whichthe petitioner was sentenced were permitted to be heard. The petitioner borethe burden of proving by the greater weight of the credible evidence thatmodification of his or her sentence would be in the public interest.32 If thecourt so found, any reduction in the incarceration portion of the bifurcated sentencewas balanced by a like increase in the extended supervision portion so that thetotal length of the original sentence did not change. The court’s decisioncould be appealed by either the petitioner or the state.34 Inmate petitioners hadthe right to be represented by counsel, including appointment of a state publicdefender. In its study of the new legislation, the Legislative Fiscal Bureau ofWisconsin provided no evidence describing whether or how often this lawresulted in the release of inmates from confinement.

II.Wisconsin’sNew Compassionate Release Law

Wisconsin’s new compassionaterelease law simplifies earlier procedures and expands the class of inmates who canpetition for sentence modification. The statute retains the distinction betweenthose petitioning for compassionate release because of age and those whopetition for reasons of ill health. The age qualifications track the previous legislation;however, the new provision no longer bars petitions by elderly inmatessentenced to life imprisonment. Thesecond category of “extraordinary health condition” may signal greatereligibility to petition under the law. Anyone claiming “advanced age,infirmity, or disability of the person or a need for medical treatment or servicesnot available within a correctional institution” may now petition forcompassionate release.

In terms of procedural differences,the law shifts the locus of decision making from the sentencing court to a newlycreated administrative panel, the Earned Release Review Commission, whichreplaces the parole board. The Commission, part of the executive branch ofstate government, consists of eight members who have “knowledge of orexperience in corrections or criminal justice.” The chair is nominated by thegovernor and subject to state senate approval; other members are appointed bythe chair.

Inmates meeting eligibilitycriteria may submit petitions to the Commission. Upon receipt of a petition,the Commission sets a hearing to determine whether the public interest would beserved by modifying the sentence as requested. The District Attorney from thesentencing jurisdiction and any victim of the inmate’s crime must be notifiedand can be present for any such hearing.

Again, inmates must prove thatgranting their petition would serve the public interest by the greater weightof the credible evidence. For inmates who meet that burden, the Commission mustmodify their sentence in the manner requested. As was the case under theprevious legislation, if the petitioner prevails and is granted a modification,the state may appeal that decision to a reviewing court (which may overturn thedetermination using an abuse of discretion standard). By contrast, inmates can onlyappeal from the denial of their petition under the common law right ofcertiorari. Again, those petitioning for modification are afforded the right tocounsel, including appointment of a state public defender. Echoing previouslaw, reduction in an inmate’s term of confinement must be balanced with a likeincrease in the period of extended supervision so that the total length of thesentence imposed remains the same.

Initially, one must applaudWisconsin’s willingness to revisit parts of a recent sentencing overhaul toaddress difficulties in the current system. Although the proposed changes arehardly sweeping in scope, they do offer real possibilities of change. Byremoving a level of bureaucracy and shifting decision making from electedjudges to a politically appointed commission, Wisconsin may speed up thepetitioning process and improve results. In an era when judicial elections aremarred by often unsupported allegations that opponents are soft on crime, thedecision to release an elderly or infirm prisoner seems best shielded fromobvious political posturing. That said, the Commission must still be responsiveto the citizens of the state.

III.Public Interest Considerations

To determine the public-intereststandard that governs decisions to grant or deny release, it is helpful toreturn to standard sentencing goals. Presumably public interest includesconsideration of specific deterrence of the inmate and protection of thepublic, retribution for past wrongs, and an inmate’s efforts at rehabilitationwhile incarcerated. The literature also indicates that public interest includessaving the criminal justice system money while not imposing an undue burden onthe communities to which the inmates will be released. Finally, it seems thatconsideration of the public interest must also include some reflection on theodd word compassionate in the title of the statute.

No one doubts that specific deterrenceand protection of the public are paramount in considering the release of prisonersinto society. To underscore this idea, Wisconsin State Representative ScottSuder recently organized fortyfour GOP lawmakers to protest all of the prisonerrelease provisions passed as part of the budget bill in 2009. Commenting onsimilar legislation in the past, Suder decried compassionate release of elderlyinmates: “I don’t think age should be a factor . . . for letting people loose earlyor giving them things like house arrest. . . . Putting these criminals inresidential nursing homes with an already vulnerable population . . . I thinkis just utterly dangerous.

Although concern with public safetyis an important factor, statistical analysis undermines claims that those eligiblefor compassionate release pose a substantial threat to society. Research inthis area indicates that elderly prisoners are the least likely to, and theleast capable of, committing crimes. For one thing, elders in prison appear tobe more physically impaired than the general elderly population. Theyfrequently have lives marked by poverty and addiction; therefore, they tend to beless healthy than society at large. Aside from these ex ante considerations,the major factor contributing to growth in Wisconsin’s prison population isrevocation of earlier sentences. Inmates know that they will always be subjectto revocation if they step out of line while on extended supervision. Thisawareness may well discourage further unlawful behavior.

Second, internal evidence from thestatute demonstrates that retribution is taken into account in compassionate releasedeterminations. Elderly prisoners are not eligible to file petitions until theyhave served a substantial period of their sentences behind bars.60 Furthermore,Wisconsin prison sentences and periods of extended supervision have increasedmarkedly under Truth in Sentencing, which in part underscores the necessity ofthis law. Retribution concerns are thus met. In addition, Wisconsin statutesspecifically provide that courts must consider inmates’ efforts atrehabilitation while incarcerated as a factor in any motion to modify asentence. Insofar as correctional institutions still accept the idea thatprisoners strive to reform their lives, inmates’ efforts at selfimprovement arerewarded by current Wisconsin law.

Although necessary, it is fair toconcede that the foregoing would not constitute sufficient grounds for changingthe release standards barring an expected dividend of cost savings. Thus, it isnoteworthy that such savings remain undefined. For example, no one has beenable to estimate what, if any, net savings may accrue because of Wisconsin’s sentencemodification legislation.64 Indeed, rather than careful analysis of projectedsavings and possible costs that may be shifted to other state, county, ormunicipal programs by releasing inmates under compassionate release, thelegislative history assumes without proof that it is more economical to housesome people outside of state prisons. Moving prisoners out of the statecorrections system will surely save money for corrections.65 The NationalCenter on Institutions and Alternatives concluded that release of nonviolent elderlyprisoners to communities would result in “astronomical” savings. Later studiesare more guarded and suggest that it is at best unclear whether this strategy willgarner any net savings across government and private entities.

One key concern is that costs maybe shifted to those particularly unable to take on added financial burdens giventhe precarious state of Wisconsin’s current economic situation. In particular,Milwaukee has been recognized as a metropolitan area suffering concentratedpoverty. For instance, one recent study of the past forty years of economic datain the largest U.S. cities revealed that “none of their urban centers fell asfar, as fast, as hard,” as Milwaukee’s. The study concluded that “Milwaukee falls tothe bottom of nearly every index of social distress.” Another recent studyrevealed that Milwaukee has one of the highest rates of Black male joblessnessamong U.S. cities.

If one accepts as a reasonableassumption that many who are released will return to their families forend-of-life or extended care, it would also seem reasonable that any billproviding for compassionate release would provide for increased communityreentry funding to support families facing the financial burdens associatedwith caring for these family members. Before the new bill, the State Departmentof Corrections spent more than $27 million annually for the purchase of goods,care, and services, including community-based residential care, for inmates, probationers,parolees, and individuals on extended supervision. Although the governor requested additional positionsand funding in the bill of more than $5 million, that request was vetoed by theWisconsin Legislature’s Joint Finance Committee and adopted by the Conference Committee.This denial of additional funding may end up costing the state more in the longrun, because it may either make compassionate release a practical impossibilityin a great number of inmates’ cases or lead families already in precariousfinancial circumstances into even greater economic distress.

Despite these very real costconcerns, on balance, the public interest may well be upheld by Wisconsin’s newcompassionate release programs—but this interest requires a different sort ofanalysis from that which usually occupies lawyers. The values at stake are wellexpressed by considering the Latin root of the word compassion: “I suffer with.”Rather than the Kantian broad-based rules that characterize most publicinterests, the interest spoken of here is more in line with a Heideggerian“Dasein,” the “being there” that roots more personal considerations. The wordcompassion evokes a relationship at a level of personal directness that thepenal apparatus rarely considers. Rather than determining results that could beseen as distributed equitably by a blindfolded figure holding scales, thosedeciding compassionate release petitions must consider the suffering andextremity of a particular inmate with particular physical, emotional, andmental needs and limitations.

In determining the public interestinvolved in compassionate release of convicts, the Commission will need to asknot only what sort of society we are but also what sort of society we aspire tobe. For compassionate release, the public interest must be focused on a veryparticular private interest. If the Commission is not willing so to act,Wisconsin’s new compassionate release law will not engender much change.